In Re Fisher
640 F.3d 645
5th Cir.2011Background
- Fisher and Odyssey sought a writ of mandamus to force district court to recognize Fisher as a crime victim under the CVRA and MVRA.
- District court denied restitution for Fisher after Slovacek’s bribery conspiracy, finding no direct and proximate causation of Fisher’s $1.8 million loss.
- The conduct at issue arose from a public-corruption case involving Don Hill and other Dallas officials; Slovacek was convicted for participating in the conspiracy.
- Fisher testified at a prior sentencing hearing about his losses and the alleged impact of the conspiracy on his competitive standing; the district court rejected the claim as too speculative.
- The Fifth Circuit must decide mandamus relief under the CVRA, which requires showing no other adequate remedy, a clear and indisputable right, and an appropriate writ under the circumstances.
- The court treats the record as presented by briefs and a prior sentencing transcript, with a potential later transcript to come; the petition is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fisher was a crime victim under the CVRA/MVRA. | Fisher argues direct and proximate harm from Slovacek’s conduct. | District court found no but-for causation and that the loss was too speculative. | Denial of mandamus affirmed; not clearly erroneous. |
| Whether Fisher’s lost-opportunity/level-playing-field theory supports restitution. | Fisher contends conspiracy deprived him of a fair opportunity to compete. | Court found this theory speculative and not clearly established; law of the case forecloses. | Dismissed; alternative grounds support denial. |
Key Cases Cited
- In re Dean, 527 F.3d 391 (5th Cir.2008) (mandamus under CVRA requires extraordinary relief conditions)
- In re United States, 397 F.3d 274 (5th Cir.2005) (per curiam mandamus standards in CVRA contexts)
- In re McNulty, 597 F.3d 344 (6th Cir.2010) (direct and proximate harm concept in CVRA restitution analysis)
- In re Stewart, 552 F.3d 1285 (11th Cir.2008) (foreseeability and harm nexus in CVRA restitution)
- Lyons v. Fisher, 888 F.2d 1071 (5th Cir.1989) (law of the case doctrine governs subsequent proceedings)